Oregon Injury Attorney Blog

A recent decision out of the Eastern District of Wisconsin harshly criticized the Social Security disability determination process. Using terms like "wholly dysfunctional," the Court went on to note the number of cases filed in federal court, and the ever rising rate of remand. According to the decision, the rate of cases being sent back to the Social Security Administration hearings office is that 83%. The average rate nationally is 45%. A basic primer on the remand process will help you appreciate the significance of this statistic.

If a person claiming Social Security disability receives an Unfavorable Decision from an Administrative Law Judge, the claimant can appeal their case to the Appeals Council. If the appeals Council refuses to review the case, the next appeal is a federal court claim.

A federal court may decide to uphold the hearings decision, grant benefits, or send the case back to the hearings office for further proceedings. Sending the case back to correct errors is called a "remand." Essentially, what is going on in Wisconsin is quite scary. This is because the District Court's finding that over 8 out of 10 times, Social Security is getting it wrong. Keep in mind, this is after the disability claim had been denied twice.

In Oregon I notice that the US Attorney will often agree to send the case back to the hearings level for further development. We work closely with attorneys who limit their practice to federal court appeals of Social Security disability claims. More often than not, the case is sent back for another hearing.

Social Security maintains a list of serious health problems that, by their definition, are so severe, that Social Security does not need to fully develop the applicant's work history in order to make a decision on the case. These conditions involve cancers, neurological, immune system, and other serious health problems affecting adults and kids. Recently, the SSA announced the addition of 35 conditions to the Compassionate Allowance program. Social Security has good information, including the actual list, on its site.

Obviously, the intent of this program is to get the application processed more quickly for the most serious of conditions, but is is important to remember that a claimant can assert a condition that is on the list during an appeal. It's probably not too rare that this can happen, given the extraordinary wait for a hearing date.

This post is supposed to give you a tip on filling out your work history when applying for Social Security Disability. The tip is this: describe all of the physical requirements of your job, even if you only have to do those tasks once in awhile. However, in trying to explain this, I got a little carried away, which happens. Below is the "why" behind the tip.

At a Social Security Disability hearing yesterday, a Vocational Expert, what we call a "VE" testified. This happens in pretty much every Social Security Disability hearing. The VE is there to talk about the Claimant's prior work, and then answers hypothetical questions about whether a "hypothetical Claimant with hypothetical limitations" is able to perform my client's past work. Why is this?

A Judge needs to make certain findings, and take certain steps in deciding the claim. One of those findings is to figure out what my client can and cannot do in a work setting. This is called "residual functional capacity." More on that in another blog, but simply stated, the question is, "what can you still do if you had to show up at work day in and day out?"

This is how it works. The Judge may already know what the decision will say on what you can and cannot do. Still, the laws and rules require the Judge to pose questions that give different scenarios about what you can and cannot do in a work setting. The Judge pulls information about your limitations out of your claims file, and from your testimony, or at least that is what they are supposed to do. The VE then applies these hypothetical questions to the Claimant's past work, and tells the Judge whether that "make pretend person" could or could not do any of the jobs that you had done in the fifteen years before your disability began.

Let's use an example that I use all the time with clients. Let's say the Claimant is a logger, and suffered a serious knee injury, and every one agrees that kind of injury will keep that logger out of the woods. In that case, the VE is probably going to say no more logging.

I use the logger example because anyone on in Oregon and Washington knows what loggers do, or they should. But some of us do not have to run up and down hills, and carry cables, and dodge out of way of giant logs rolling down a steep hill. Still, there may be things we do in our jobs that require lifting, carrying, bending, or climbing. So, like I said, when you talk about your past work, be descriptive, and include all of the physical requirements of the job.

"What can I do to get a decision from Social Security more quickly?"

That was the question from a former client who is just about to start his application. Most of my Social Security folks have been denied already, and their claim is on appeal, but I was able to give some options. Here they are:

1. If You Can, Gather Up Your Medical Information

I am not just talking about the records, but when you apply either in person or on line, the names, addresses, and phone numbers of your doctors and other health care providers. Have a medication list ready too. The Social Security Administration provides a checklist to help you gather relevant information. Go to www.ssa.gov, click on the icon that invites you to apply for disability.

Also, if you can get the chart notes yourself, that will save time. Otherwise, the disability analyst, who has stacks of claims to review, has to send out the request, maybe wait for an invoice for copying fees, pay it, and then receive the records. Your health care provider may provide the records without charge.

Did you have an on the job injury, or a claim for injury. If so, there is probably an attorney file or claims file out there. I have clients put my name down as a source for medical records, and we are happy to fax that in.

Finally, are you seeing the doctor regularly. Update those records, and send them in.

2. Be Polite, But Persistent

Check with your claims analyst regularly. Every day calls are probably a bit much, but checking in once every few weeks cannot hurt. You may actually be able to help with the information gathering process.

3. Fill Out Those Disability Reports

I know from my own experience that if you do not send the disability report in with your appeals, the Local Branch Office will hold up forwarding the appeal. With an initial application, any questionnaires should be completed returned promptly.

If Social Security asks for a friend or relative to fill out a similar form, be sure it is someone who has a good idea of the challenges you face day to day, and can explain those observations.

4. Your Physician

Some doctors are happy to help with providing information, others not so much. If your doctor states a willingness to support the claim, or even recommends the application, see if the doctor will fill out a questionnaire about your physical and/or mental limitations in a work setting. Social Security will not accept a blanket statement from your doctor that you are disabled, that is for Social Security to decide. However, if your doctor can comment on how much you would be limited with lifting, walking, standing, bending, and doing other work activities, that helps. Also, see if your doctor can estimate how much work you would miss, even working within your limitations.

In 2007, Social Security launched the "Wounded Warriors" program, an outreach effort for service members returning from combat in Iraq and Afghanistan. Congress recently asked the Government Accountability Office ("GAO") to assess the program, and measure its success.

VA data, the report explains, shows that out of 200,000 potentially eligible Vets, only 10,000 have applied for Social Security disability. Another fact: 92% of fully disabled Vets receive VA disability only. There are many possible reasons cited for this disparity.

The Department of Defense estimates there are about 34,000 wounded Veterans potentially eligible for benefits, but VA numbers the GAO reviewed estimate 500,000 Veterans. One out of every three suffers from a mental or cognitive based problem, which may explain troubles navigating through Social Security's phone system, and its forms. This makes even more sense when comparing the percentage of Vets suffering mental impairments compared to civilians seeking disability benefits. According to the report, 60% of disabled Vets suffer from mental or cognitive disabilities, whereas 23% of the civilian population include those with mental issues.

Other Links:

Wounded Warrior Project

Social Security: Wounded Warrior Information

Oregon Department of Veteran's Affairs Wounded Warrior Resources

This comes up a lot during the initial consultation with my clients.

Social Security Disability Insurance, also called "DIB" is a disability insurance benefit. You earn this benefit through wage withholdings paid to the government. Those withholdings are like insurance premiums. If you pay enough premiums over the required length of time, then you are "insured" for disability. Your benefit is then calculated based on your prior earnings.

Supplemental Security Income, or "SSI" is a disbility benefit, but it is also based on financial need. A SSI applicant must prove disability, but also must meet income and resource thresholds.

Resources refers to things you own. If you have too much "stuff," you are not qualified. I think the reasoning is that SSI is a benefit of last resort, and if you really need to, you can sell off your assets to subsist. Some things are excluded when counting resources, like a house, household goods and a car used to go to doctor appointments.

Income is just that, income. Depending upon your circumstances, Social Security will offset your income against the set SSI benefit rate. There are a lot of rules and policies that apply to how this offset is calculated. Also, it's handled at your local Branch Office.

Many of my clients will have "concurrent" claims, which means that they are appealing denials of SSI and Disability Insurance benefit applications.

Here's some helpful links to the SSA website:

Understanding SSI

Getting Social Security Disability Benefits

NPR recently reported on Alzheimer's patients trying to get Medicare coverage sooner than later. The general rule is that a disabled person on Social Security Disability must wait two years from the date their disability began to become eligible for Medicare. Apparently, Congress wanted to make sure that people were really sick, and really needed medical care, before they were enrolled in the Medicare system. There are a few exceptions, but for most, there is a two year wait. Another premise underlying the two year wait is the notion that most people are insured, and unless they are made to wait, these folks will cancel their insurance and get on Medicare to save money.

Obviously, this is not the case, especially in today's health care environment. I have read of some proposals in Congress, which are part of the health care reform push, that would decrease the wait time, but it is a gradual reduction of the wait time, over years, that offers no quick fix. It will interesting to see how the Congress addresses this issue.

Other Helpful Links:

Congressman's Green's Blog

Amputee Coalition of America Fights To Eliminate Two Year Wait Period

The Oregonian reported today on an AARP report that describes the number of people in America with a work disability. Most striking is the fact that roughly half of these folks are not receiving Social Security disability. The report also provides a good general outline of how the Social Security program works, who it serves, and how it is funded.

Another interesting comment involves the expected rise in claims due to our struggling economy. I have often heard that during hard times, disability and workers' compensation claims rise. Perhaps, but I have never seen a study or any statistics to support that contention.

Other links:

The Oregonian Article

AARP's Social Security Web Page

There is some hints of slight improvement in the current disability hearing backlog. Recent statistics show that the average "case processing" time fell for October to December of last year, but is still at 479 days. The number of pending cases dropped from an all time high in December of 2008. Still, the number of pending cases has not dropped below 760,000 since June of last year.

Hearing requests have increased 10% for fiscal year 2009. Some attribute this to a downturn in the economy, although I have not seen any reliable statistics to back that up. I suspect is it more likely due to the overall aging population. This increased hearing request trend is likely to continue because new applications are up 11% at state DDS (disability determination service).

Compared to last year, there are 90 new ALJs, and these new judges are starting to meet their target caseloads. ALJ productivity is increasing, and some attribute this to senior attorney involvement. Senior attorneys will make recommendations to ALJ's on pending cases, which is a great tool for cases that have sufficient evidence to make a disability determination.

With hearings offices pulling more cases, ALJs conducting more hearings, and attorney advisors reviewing cases, the backlog seems to have hit a bottleneck with Decision writing. It's taking longer to get the Decisions out, which makes sense. However, it shows a real effort to get things moving again.

On a local level, I notice some changes. The Portland ODAR is contacting our well in advance to set hearing dates, and is asking for my available hearing dates for the next three or four months. This is promising.

Every time I meet a new Social Security client, I explain the elements of the claim, the appeals process, and the hearing. Then I break the news to them about the wait time for a hearing. That is a hard pill for a client to swallow when dealing with a serious medical problem, no income, and minimal to no medical care.

Social Security now has a Compassionate Allowance program, designed to target medical problems that are so obviously severe that disability is obvious, and benefits should be granted on a quick track basis. After a series of hearings, the Social Security Administration developed a list of those conditions subject to the Compassionate Allowance Program. This list is not static, and may be amended in the future

Another potential tool to avoid the long wait is an On The Record Decision. We calls these "OTRs." An Administrative Law Judge will issue an OTR Decision if the documents in the claims file clearly establish disability. Of course, what clearly establishes disability to one person may not to another. I will request an on the record decision where the medical evidence is strong, and there is little doubt on the issue of disability.

Social Security will also provide an expedited hearing where the Claimant is experiencing "dire need." To meet dire need, you must show that you have no access to food, medical care, or shelter. This is a difficult standard, but with the right evidence, the hearings office will expedite the hearing with a dire need request.

Social Security recently announced that it will start accepting retirement benefit applications online. For some time Social Security disability applicants have had this option on the Social Security Administration web site. I have not heard a lot of client feedback on the online application process, and get the sense that most people are still more comfortable filing under the traditional paper method.

In some respects, our approach to a Social Security hearing has changed drastically in the past few years. Most all of our clients' exhibits are submitted electronically, and most exhibit packets take the form of a compact disc.

In the bigger picture, however, our job has not changed. It still comes down to keeping in touch with the client, working with the doctors and nurses to describe our clients' disabilities, and making sure Social Security has all the information it needs to make a decision.

If you have a question about your appeal, electronic or not, don't hesitate to give us a call.

Anyone applying for social security disability benefits knows that the process is a long road. In Oregon, the first step is to provide medical information to the Oregon Department of Disability Determination services, also known as DDS. DDS then sends out requests for medical records. Sometimes that get the records, and sometimes they do not. This can often cause a delay, or even worse a denial for lack of information.

In effort to streamline the process, Social Security will be participating in an electronic medical records system called the Health Information Exchange (HIE). This system claims to provide a seamless connection between hospitals, doctors, and other entities. Social Security will be the first government agency to use the system, beginning in 2009. Of course, the disabled worker must first consent to use of the electronic system.

Most of what I have read about the new system was published by the Social Security Administration and the vendor providing the technical support, so the predictions are quite optimistic. Will it make a difference? Obviously, it's too early to tell, but with the way things are with disability determinations, any change is welcome.

The Oregonian recently issued an editorial urging the Social Security Administration to focus more on reviewing existing disability claimants for fraud and abuse, mainly because it saves the agency a lot of money. Generally, I agree, but first things first.

As I have described in a recent post, there is a huge backlog at Social Security, with people waiting over two years to get a hearing in front of an Administrative Law Judge. One of the hardest things that I have to do is tell some homeless person with serious health problems that they are going to have to wait another year before they even get a hearing. I had one case where my client was living in the Oregon Coast Range in an unheated trailer with no plumbing or electricity, and the Social Security Judge found that this person was not suffering enough to get a hearing scheduled on an expedited basis. Maybe there are others worse off, and if so, it only underscores the gravity of the problem.

We have to root out fraud, and review cases, but to punish the worthy even more so we can catch the fraudulent is simply inhumane. Apparently, the disability review program is profitable. This means that for every buck the agency puts out to stamp out fraud, it saves almost $12.00. That sounds like a good investment for Congress, and not a bailout.

The backlog continues. My Oregon Social Security disability clients are waiting nearly two years for a hearing date. Congress has held hearings, newspapers have written stories, and I even saw a major story on the CBS Evening News. Even though the Social Security Administration is addressing the topic, there is no relief in sight.

We work closely with our clients to keep in touch during this long wait, and I have even had success in getting a hearing scheduled more quickly, or having Social Security decide a case for my clients without the need for a hearing. At the very least, we have built a policy making sure we are ready to go as hearing approaches.

If you are experiencing a dire need (food, housing, medical care), the Social Security Judge at the hearing office may allow an expedited hearing. It's not easy showing dire need, especially when you consider that most people waiting for a hearing are without income, and unable to pay their bills. However, we have done it.

In certain cases, we will also contact doctors early in the case, obtain a needed report, and ask the hearings office to consider finding for our client. Again, this will not work in every case, but if the evidence is there, we have been successful.

I have helped hundreds of people in Washington and Oregon with their Social Security Disability claims. In Oregon, like many other states, a Social Security Disability claim involves a lot of paper work, and several levels of appeal. Here is a basic breakdown.

The first step is the application. Many Social Security claimants will contact their Local Branch Office to set up an appointment to apply for benefits. Oregon has several branch offices throughout the state, and the Social Security web site can help you find the office closest to your home. Just go to the site, and type in your zip code.

If you live in Oregon, Social Security will send the file to Oregon's Disability Determination Services (also called "DDS"). This agency obtains medical records, sends forms for you and family members to fill out, and has doctors and other experts review the file to see if you meet the requirements for disability. DDS may even set up an appointment for you with one of its doctors to obtain an opinion on your medical condition.

If the DDS finds that you are not disabled, then Social Security will deny your application. You will receive a denial letter, and this is why you need to keep Social Security updated on your current address. You have sixty days to appeal this decision by filing a "request for reconsideration." After you make this appeal, DDS should obtain updated records, and it may even send you to see a doctor. DDS then looks at your file as if it were the first application, and decides whether the initial decision was correct. I have seen statistics showing that only one third of all reconsideration requests are granted.

If your request for reconsideration is denied, you can then request a hearing. This is usually the part of the case where I will get involved. Like the initial denial appeal, you have only sixty days to request a hearing. After the request for hearing, the file is sent to the nearest Social Security Office of Disability Appeals and Review, also called "ODAR" This is the hearings office. Our closest ODAR office is in Portland. Currently, Claimants are waiting almost two years on average for a hearing date. At any time prior to the hearing, or even after the hearing, you can submit new evidence for the Judge's review. When a hearing is scheduled, you can testify and present other evidence to an Administrative Law Judge, who then makes a decision on your case.

After the hearing, the Judge will issue a "Decision." It is either "Unfavorable" (you lose), or "Fully Favorable" (you won). Sometimes, you may receive a "Partially Favorable Decision" (you won on some issues, but lost on others). Like the prior decisions, this one can be appealed. You must file the appeal within sixty days with the Appeals Council.

The Appeals Council reviews all of the evidence in your case, including your testimony, to see if the Judge properly reviewed the evidence, and followed the law in making a decision on your case. I have written several briefs to the Appeals Council, and often, we are able to get the case sent back to the Judge for another hearing.

Even if you do not win at the Appeals Council, you have a right to file the matter in the United States District Court. This is the federal court. Our office does not handle federal court cases, but we work closely with attorneys who limit their practice to fighting these cases in federal court.